My William Brennan lecture on "NFIB v. Sebelius and the Debate over Constitutional Federalism"

My 2014 William Brennan lecture on NFIB v. Sebelius and its implications for the ongoing debate over constitutional federalism is now available on SSRN. As I noted in the lecture itself, Justice Brennan probably would not have agreed with much of what I said. However, the Brennan lecture series has featured a number of previous speakers with views similar to mine (e.g.—co-blogger Randy Barnett), as well as many whose opinions were closer to Brennan's own (e.g.—Erwin Chemerinsky and Paul Finkelman). It was an honor to follow in their footsteps.

Here is the abstract:

The litigation that culminated in the Supreme Court's ruling in NFIB v. Sebelius represented a class between two opposing visions of constitutional federalism: one contending that courts should allow Congress nearly unlimited power over anything that might potentially affect the national economy, and another that advocates strong judicial enforcement of constitutional limits on federal authority. This clash can be traced through all three arguments offered to justify the Affordable Care Act individual health insurance mandate: claims that it was authorized under the Commerce Clause, the Necessary and Proper Clause, and the Tax Clause. It also lies at the heart of the otherwise distinct debate over the constitutionality of the ACA's Medicaid expansion.

Efforts to justify the mandate or the Medicaid expansion without giving Congress virtually unlimited power fall apart under close inspection. The same is true of Chief Justice John Roberts' opinion holding that a modified version of the individual mandate is authorized by the Tax Clause, though not by the other two clauses cited by the government.

Neither side in the conflict over constitutional federalism won a decisive victory in NFIB. Events since that ruling demonstrate that the debate between them is likely to continue for a long time to come.

NFIB is noteworthy for the way it made clear the depths of the division between the two visions of federalism. It may also have been the first major Supreme Court case in which the blogosphere played a major role in developing legal arguments and shaping public debate. Both the conflict over federalism and the role of the blogosphere in shaping legal debate are likely to recur in future cases.

Some of the issues covered in the lecture are explored in greater detail in A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case, a 2013 book coauthored with several of my VC co-bloggers, a number of whom played key roles in the ACA litigation.

The lecture was originally delivered in January 2014, and I made only minor efforts to update it to take account of later developments prior to publication. I thought it might seem strange if the 2014 Brennan Lecture included extensive discussion of events that occurred a year later.

Overall, I think most of the points I made in the lecture still hold up well, though the validity of some will be hard to judge until we have greater historical perspective on the case (a caveat I tried to emphasize in the lecture itself).

But people can reasonably argue that the recent debate over federalism issues in King v. Burwell calls into question my conclusion that the debate over constitutional federalism is ideologically polarized and likely to remain that way for some time to come, with most conservatives and libertarians arguing for relatively strong judicial enforcement of federalism and most liberals arguing for little or none. In the recent debate over Burwell, some liberals—including Harvard Law Professor Laurence Tribe—have endorsed what seems like a fairly robust approach to judicial enforcement of limitations on federal "coercion" of state governments, while conservatives and libertarians have been reluctant to do so (at least in this case).

If the debate over King leads a large percentage of liberal judges and legal commentators to endorse strong coercion-based limitations on federal power more generally, it would indeed be a major development. While I am no fan of the coercion doctrine myself (and have been a critic of since long before this case), if the left embraces it in a serious way, it would significantly alter the ideological dynamics of the federalism debate in a way I believe would be beneficial, even if I would prefer that they instead pursued a very different approach to limiting Congress' spending powers. As I note in the Brennan Lecture, it is very difficult for courts to enforce constitutional limitations on government power unless that enforcement enjoys at least some measure off bipartisan, cross-ideological support.

For the moment, however, I remain skeptical that this is actually going to happen. It is noteworthy that many of the liberals focusing on the coercion argument in King do not claim that the plaintiff's interpretation of the ACA is actually unconstitutional, but merely that the coercion argument is plausible enough that it raises "constitutional problems" that the the Court should interpret the ACA to avoid (Tribe is an important exception). This leaves open the possibility that, in future coercion cases, that the argument should be rejected, even if it was plausible enough to trigger avoidance canons in cases where a statute is unclear and one interpretation is less likely to raise constitutional problems than the other.

Also, it is entirely possible that the Court will resolve King without focusing on the various federalism arguments. For example, the Obama administration could prevail under one of several other theories its defenders have advanced.

Whatever happens in King, it is certainly possible that left-right polarization over constitutional federalism will eventually diminish. But if that does happen, I think it is more likely to be a slow, gradual process than a quick and dramatic one.